Appeal decision protects solicitor offering ‘unbundled’ advice

Solicitors instructed on a limited retainer do not have a broader duty of care to their clients, the Court of Appeal has ruled, asserting the importance of ensuring that lawyers can offer unbundled services.

The ruling came in Minkin v Lesley Landsberg, a case in which a client claimed that her lawyer was negligent in the advice she gave during divorce proceedings.

The case centred on the extent of a solicitor’s duty to their client when they are instructed on a limited retainer.

Sharon Minkin pursued a claim against Lesley Landsberg, a family lawyer at Barnet Family Law, after problems arose from a consent order covering financial arrangements with Minkin's former husband. Minkin blamed a lack of legal advice for the reason she had entered into the order.

But Landsberg said she had been instructed only to draft a consent order, after a previous order had been rejected by a district judge for being poorly drafted. She had not been instructed to advise on the merits of the agreement.

In judgment, Lord Justice Jackson agreed that Landsberg did not have an obligation to give advice beyond what she had been instructed to do. Jackson also noted that, before Landsberg’s involvement, Minkin had already received advice from another firm which had warned her that the settlement did not seem satisfactory.

Agreeing, Lady Justice King (pictured) emphasised the importance of ensuring solicitors can unpack legal services without being held to a wider duty of care, especially due to the problems created by a lack of legal aid in financial remedy cases.

She said: ‘An indication of the problems which can arise is found in the present case; a case where the divorcing couple are highly educated and used to dealing with technical and complex concepts and documents, and where the husband had legal representation when the proposed consent order was first put before court.

‘The district judge was nevertheless obliged to reject the proposed order (twice)… District judges, more than any other level of the judiciary are finding their lists are overwhelmed as a consequence of the increase in court time taken by each case where (as is now routinely the case) parties appear as litigants in person.’

King said that bespoke or ‘unpacked’ legal services address this problem and are ’invaluable’ to courts and litigants alike.

She warned that there would be ‘very serious consequences’ for both courts and litigants in person generally if solicitors felt unable to accept instructions on a limited retainer basis for fear of a far broader duty of care being imposed on them.

But she stressed the need for solicitors to draft supporting client care letters and formal written retainers with considerable care to reflect the client’s specific instructions.